Thoughts from the Middle

The First Amendment:  What should be the Limits of Freedom of Speech?

By

Robert J. Fischer

January 6, 2021 was certainly a day that will be remembered for decades.  The President addressed followers (that he had previously encouraged to descend on Washington, D. C.) to march on the Capitol while Congress was in the process of certifying the 2020 election returns.  The takeover of the Capitol, destruction of property, and the death of 6 people resulted in a backlash.  The Republican Party is now split in two, with traditional Republicans attempting to salvage the party, and MAGA supporting the President’s fraudulent claims that the election was stolen.

How did the nation get to this point?  The answer is complex, but the central answer lies in the President’s false claims about the election, as well as many other issues critical to the operation of a democracy.  These claims were widely disseminated through the media.  Twitter, Facebook, Parler, and other social media posts allowed for all kinds of information—true, false or partially true—to be posted as though they were facts.  In addition, blogs and media publications, such as American Thinker. Newsmax, and the Daily Caller, make for a staggering amount of information that is available!  Most consumers do not have the time or inclination to attempt reading op eds, but instead, they tend to view information that supports their own beliefs.  There is little interest in sorting through the various claims to find the facts.  Truth has become whatever is published in your favorite source of information.  The “halo effect” (the belief in that which surrounds you) is also enhanced by social media’s algorithm profiling of users. These algorithms enable these media giants to send out information that corresponds with the interests and beliefs of the reader.  These practices only tend to reinforce the existing views of any given reader.

Reading posts on social media by longtime friends, former students, and associates has reinforced my belief that the “truth” is not always associated with facts. A recent article in the American Thinker is well written and presents tangible material; however, there are also many unproven assumptions which support a very conservative narrative.   Is it ethical for someone to mislead consumers of political and social information?  For most Americans, the First Amendment, which includes Freedom of Speech and Press, is critical for the American way of life.  We are free to express our opinions without fear of reprisal from our government.  Opposing opinions are allowed, creating an opportunity for discussion and debate.  The discussion and debate can possibly lead to compromise of ideas.  This is one of the major foundations of our success as a democracy. 

Yet in today’s twenty-four hour news cycle and instant access to information, freedom of speech and the press are likely contributing to much of the division among American citizens.  Is there a limit to freedom of speech?  Many years ago the Supreme Court concluded that there is a limit.  For example, you may yell, “Fire, Fire!” if you are in the woods by yourself, but it is not allowed if you are at a concert.  Words that incite imminent lawless action (revolt or riot) are not protected by the First Amendment (Schenck v. United States, 1919; Brandenburg v. Ohio, 1969).  

In addition, stated opinions may also result in being censored by publications or ostracism by others.  Congress has also weighed in with laws that have made it illegal to mislead customers about price, quality and value of products.  The laws allow the Federal Trade Commission to evaluate whether commercial ads are truthful.  (Truth in Advertising Act, 2014)  Unfortunately the current law does not extend to political ads.

Should the freedom provided by the First Amendment include making false or misleading statements? For example, a post on Twitter attributed to A. M. Smith, claims that an IT expert has testified in Italian court that the voter machines used in the American 2020 election were rigged to switch votes to Biden.   For decades, speech and the written word have been subject to civil suits if they are false (either libel or slander).  Merchants have been held accountable for false advertising by the Truth in Advertising legislation. Shouldn’t false, misleading statements be subject to criminal prosecution?   It is time that our legal remedies– and perhaps new laws– are applied to the publication of statements on social media!

Forums such as Facebook and Twitter have recently begun to more closely monitor content published on their platforms.  Google and Apple just blocked the app for Parler, which has been an alternative “free speech” site replacing Facebook and Twitter due to what many believe is censorship.  Amazon, which hosted Parler, has now terminated their relationship. Critics believe that these corporate giants are violating the rights granted through the First Amendment, however, as stated earlier, the First Amendment only protects the right of free speech from government censorship.  In addition, if the information is not factually based, the forum should have the right to refuse publication. The person who eventually makes the statement should be held accountable for their false statements. 

It is my opinion that while there should always be freedom to express views and ideas, these views and ideas should be based on factual information, not on lies and conjecture. There are NO “alternative facts!”  There is only one truth.

 How America handles this new problem of determining the limits of freedom of speech (last considered by the Supreme Court in 1968) is critical to healing a divided nation created by conflict of information.  Finally, it is essential that citizen consumers know how to evaluate the information that they are reading.  What are good sources of factual material?  Is the media source liberal or conservative in nature?  Who is the editor?  Where is the money source?  Does the author (or website) have possible ulterior motives for publishing their point of view? The next article will focus on these questions.